IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA GREAT FALLS DIVISION

Transcription

1 Case 4:15-cv BMM Document 55 Filed 02/02/16 Page 1 of 5 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA GREAT FALLS DIVISION TERRYL T. MATT, CV GF-BMM Plaintiff, vs. ORDER UNITED STATES OF AMERICA, Defendant. I. Background The Court denied Plaintiff Terryl T. Matt s motion to compel Mark Azure, President of the Fort Belknap Tribal Community Council of the Fort Belknap Reservation, to produce subpoenaed documents pursuant to Rule 27 of the Federal Rules of Civil Procedure. (Doc. 45.) Azure refused to comply with Plaintiff s Subpoena Duces Tecum on the grounds of tribal sovereign immunity. The Subpoena requested documents regarding road construction, maintenance, and related activities on Matt s land. The Complaint, based on the Federal Tort Claims Act ( FTCA ), alleges that Defendant negligently damaged Matt s property, trespassed on Matt s property, and caused a nuisance to Matt. (Doc. 1.) 1

2 Case 4:15-cv BMM Document 55 Filed 02/02/16 Page 2 of 5 The Court determined that tribal sovereign immunity protected the Fort Belknap Tribal Community Council ( Council ) and tribal officials from such discovery requests. (Doc. 45.) Matt has sought relief, pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, from this Court s order denying Matt s motion to compel. II. Discussion The Court may provide relief from a prior order based on mistake, newly discovered evidence, or misrepresentation. Fed. R. Civ. P. 60(b). The party seeking relief must show extraordinary circumstances justifying the reopening of a final judgment. Wood v. Ryan, 759 F.3d 1117, (9th Cir. 2014) cert. denied, 135 S. Ct. 21 (2014). Rule 60(b) does not particularize factors that justify relief, but rather enables courts to vacate judgments whenever such action is appropriate to accomplish justice. U.S. v. State of Wash., 98 F.3d 1159, 1163 (9th Cir. 1996). Matt argues that the Court should grant her relief from its prior order denying her motion to compel in light of newly discovered evidence. Matt asserts that she has discovered an Indian Self-Determination and Education Assistance Act ( ISDEAA ) contract between the Council and the Bureau of Indian Affairs ( BIA ) to maintain the road which crosses Matt s property. (Doc ) Matt essentially argues that tribal officials or employees should be considered federal actors when they act pursuant to an ISDEAA contract. Matt argues that claims 2

3 Case 4:15-cv BMM Document 55 Filed 02/02/16 Page 3 of 5 against tribal officials or employees under contract as federal actors should be directly subject to the FTCA and, in turn, subject to discovery. Under the ISDEAA, tribes and tribal organizations may enter into a contract with the federal government where the federal government will supply funding to the tribal organizations to assume the administration of programs that the federal government would have otherwise administered on behalf of the tribe. Hinsley v. Standing Rock Child Protective Services, 516 F.3d 668, 670 (8th Cir. 2008); Manuel v. U.S., 2014 WL , at *5 (E.D. Cal. Nov. 14, 2014). These contracts are known as self-determination contracts. Hinsley, 516 F.3d at 670. Indian tribes, tribal organizations, or Indian contractors should be deemed part of the BIA when they have contracted through an authorized ISDEAA contract. Department of the Interior Related Agencies Appropriations Act, 1991, Pub.L. No , Title III, 314, 104 Stat. 1915, (1990) (codified at 25 U.S.C. 450f notes); Manuel, 2014 WL , at *5. Tort claims against tribes, tribal organizations, and their employees, that arise out of a selfdetermination contract should be considered claims against the United States and subject to the full extent of the FTCA. Hinsley, 516 F.3d at 672. Matt has submitted a copy of an ISDEAA authorized self-determination contract between the Council and the Secretary of Interior or the Secretary of Health and Human Services, for and on behalf of the United States. (Doc at 3

4 Case 4:15-cv BMM Document 55 Filed 02/02/16 Page 4 of 5 1.) The parties signed the contract on October 12, Id. The contract extended until September 30, Id. The Complaint alleges events that occurred during this time period. (Doc. 1.) Matt has submitted depositions of BIA employees Mike Toland and Richard Taptto (Doc ) Mike Toland s and Richard Tapptto s deposition testimony confirms that the Council operated under the selfdetermination contract for road maintenance during the time that Matt claims Defendant damaged her property. These tribal officials and employees acting under the ISDEAA self-determination contract should be subject to the FTCA and the allegations of Matt s Complaint. The United States cannot be sued without its consent. The FTCA waives, however, the United States s historic defense of sovereign immunity. The FTCA authorizes suits against the United States for damages for injury or loss of property. Hinsley, 516 F.3d at 671. The Court may enforce federal subpoenas issued to non-party federal officials to produce official records or to testify despite claims of immunity. Robinson v. County of San Joaquin, 2014 WL , at *1 (E.D. Cal. May 14, 2014) (citing Exxon Shipping Co. v. United States Dep t of Interior, 34 F.3d 774, 778 (9th Cir. 1994)). The Ninth Circuit in Exxon Shipping Company limited 5 U.S.C. 301 the statute that permits the head of the federal agency to prescribe regulations that govern the use of its records. Exxon Shiping Co. 34 F.3d at

5 Case 4:15-cv BMM Document 55 Filed 02/02/16 Page 5 of 5 The Ninth Circuit stated that 5 U.S.C. 301 should not by its own force, authorize federal agency heads to withhold evidence sought under valid federal subpoena. Id. The court should instead apply the Federal Rules of Civil Procedure to adequately consider the government s unique interests when the United States represents a party to the underlying action. Id. at 780. The Council entered into an ISDEAA contract for the maintenance of the roads on Matt s property. The Council and its tribal members should be deemed part of the BIA and subject to the FTCA. The Council and its tribal members should be subject to discovery related to the construction and maintenance of the roads covered by the ISDEAA contract. IT IS ORDERED that Plaintiff Matt s Motion for Relief from the Court s October 16, 2015, Order (Doc. 54) is GRANTED. DATED this 2nd day of February,